FINDINGS
21 The Court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the Court that dispenses with the 21 day time limit prescribed by O 52 r 5(2) of the Rules.
22 As to delay, the applicant claimed at the hearing before the Court that her ignorance of Court procedure resulted in her failure to comply with O 52 r 5(2) of the Rules. Because the applicant is unrepresented and the delay is not extensive, the Court is prepared to accept this explanation.
23 There is no evidence before the Court that the Minister would be prejudiced if the Court were to grant an order dispensing with compliance with O 52 r 5(2) of the Rules.
24 In considering the merits of the substantial application, the Court observes that the first ground alleging bias by the Tribunal had not been raised before Smith FM. Accordingly leave would be required for the applicant to raise such ground on appeal: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. Leave may be granted if it is 'expedient in the interests of justice to allow the new ground to be argued and determined': see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26]. Such consideration requires the Court to consider the merits of the ground sought to be raised: see Iyer at [24]; VAAC at [26].
25 As no transcript of the Tribunal hearing has been put before the Court, the only evidence before the Court of the Tribunal's conduct of the proceeding is the Tribunal hearing record and the Tribunal decision itself. The Court observes that '[i]t is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves': see SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16]; see also SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]. In the present proceeding the Tribunal decision reveals no bias against the applicant.
26 At the hearing before the Court the applicant was asked whether she wished to provide any evidence in support of her allegation of bias. Although she provided no such evidence, the applicant did make oral submissions in support of her allegation. The applicant claimed that she did not answer questions properly before the Tribunal because of her memory, and that the manner in which the Tribunal conducted the hearing made her nervous. The Court considers that such submissions do not constitute a claim of either apprehended or actual bias.
27 There is no evidence before the Court in support of a claim of bias. In these circumstances the Court considers that the first proposed ground of appeal is without merit.
28 The second ground of the proposed appeal claims that Smith FM did not provide the applicant with a chance to provide further documentation. No particulars are provided in support of such ground.
29 In Smith FM's decision his Honour observed that the applicant 'has been given the opportunity to file an amended application and evidence'. There is nothing in the Federal Magistrate's decision that suggests that the applicant made any request that she be afforded a further opportunity to provide additional documents. The Court considers that the second draft ground of appeal is without merit.
30 The third draft ground of appeal claims that Smith FM did not consider the applicant's application 'reasonably' and her affidavit additionally claims that Smith FM did not consider the information provided by the applicant.
31 At the hearing the applicant supported such allegation with the submission that Smith FM did not consider the photographs she provided depicting her involvement in Falun Gong related activities in Australia. The Court observes that no photographs were provided to Smith FM and his Honour made no finding in relation to any such photographs. The Tribunal was provided with photographs of the applicant participating in Falun Gong related activities in Australia, however these were disregarded pursuant to s 91R(3) of the Act. The Court finds no error in the Tribunal's application of s 91R(3) of the Act.
32 It is apparent from the applicant's oral submissions that she seeks an impermissible merits review of the Tribunal decision: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. There is no jurisdictional error apparent in the Tribunal's decision or in the decision of Smith FM. The Court is satisfied that there is no merit in the applicant's substantial application.
33 The Court accordingly declines to make an order dispensing with compliance with O 52 r 5(2) of the Rules. It follows that it is not necessary for the Court to consider whether leave should be granted to appeal from the interlocutory decision of Smith FM.
34 The Court dismisses the applicant's application.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.